Proposal submitted by Japan NOTE VERBALE

The Permanent Mission of Japan to the International Organizations in Vienna presents its compliments to the Secretariat of the International Atomic Energy Agency and has the honour to refer to the Note Verbale N5.92 Circ.

dated 28 April 2005 in which documents of the Conference to consider and adopt proposed amendments to the Convention on the Physical Protection of Nuclear Material (the Convention), to be held from 4 to 8 July 2005, were circulated to all States Parties to the Convention.

Recognizing the vital importance of the physical protection of nuclear material and facilities, Japan has been supporting the international efforts to strengthen the Convention, and in order to speed up the process of holding the Conference to adopt amendments, Japan has become a co-sponsor to the Basic Proposal (CPPNM/AC/L.1/1), proposed by Austria together with other 24 States Parties. Japan therefore supports the ultimate objective of the upcoming Conference to adopt the proposed amendments.

Japan has nevertheless noted that the Basic Proposal needs some modifications in terms of consistency with other terrorism conventions. In this respect, Japan wishes to propose the following. The issue was raised by Japan in the informal consultations held in the margins of the preparatory meeting for the Conference held from 4 to 7 April 2005, in which the proposal received general support.

The proposed modifications are as follows (see Annex 1):

The words “(a) to (f)” in subparagraphs l(j) and l(k) of Article 7 of the proposed amendments to the Convention should be replaced by “(a) to (h)”. The words “(a) to (f)” in subparagraphs l(k) (i) and (ii) Article 7 should be replaced by “(a) to (g)” .*

The reasons are as follows:

1. The language of the accomplice provisions, subparagraphs 1 (i) (j) and (k), follows other international conventions related to the prevention and suppression of international terrorism, namely:

• The International Convention for the Suppression of Terrorist Bombings (1997) (subparagraphs 3(a) to (c) of Article 2)(Anncx 2);

• The International Convention for the Suppression of the Financing of Terrorism (1999) (subparagraphs 5(a) to (c) of Article 2 ) (Annex 3); and

• The International Convention for the Suppression of Acts of Nuclear Terrorism(2005) (subparagraphs 4(a) to (c) of Article 2)(Annex 4)

2. In these conventions, the accomplice provisions, “to participate in an offence”, “to organize or direct others to commit an offence”, and “to contribute to the commission of an offence”, cover the same range of offences.

3. In the proposed amendments to the Convention, however, the coverage for l(j) (organize or direct) and l(k) (contribute) is narrower than the coverage for 1 (i) (participate). 1(g) (threat) and 1(h) (an attempt) are not covered in the cases of l(j) and l(k).

4. Considering that the language of the accomplice provisions of the proposed amendments to the Convention follows the above conventions, the range of offences covered should also be consistent.

• The concept of accomplice is one of the most important and complex issues in criminal law. If the range of offences covered in accomplice provisions is inconsistent with those of other conventions, it may cause unnecessary confusion in implementation by a State Party.

• If the Convention would be the only convention to contain such restrictive provisions, “an attempt” (subpara-graph 1(h)) cannot be made a punishable offence in the cases of 1(j) and l(k), for instance. This could mean that the Convention may be criticized for being more lax with terrorists than other conventions.

* The words “(a) to (f)” in subparagraphs l(k) (i) and (ii) should be replaced by “(a) to (g)”. This formulation is consistent with subparagraphs 5(c) (i) and (ii) of Article 2 of the International Convention for the Suppression of the Financing of Terrorism.

The Permanent Mission of Japan requests the Secretariat of the International Atomic Energy Agency to issue this proposal contained in this Note Verbale as an official document for the Conference to consider and adopt proposed amendments to the Convention, to be held from 4 to 8 July 2005.

The Permanent Mission of Japan avails itself of this opportunity to renew to the Secretariat of the Interna-tional Atomic Energy Agency the assurances of its highest consideration.

Annex 1 Article 7

1. The intentional commission of:

(a) an act without lawful authority which constitutes the receipt, possession, use transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause death or serious injury to any person or substantial damage to property;

(b) a theft or robbery of nuclear material;

(c) an embezzlement or fraudulent obtaining of nuclear material;

(d) an act which constitutes the carrying, sending, or moving of nuclear material into or out of a State without lawful authority;

(e) an act directed against a nuclear facility, or an act interfering with the operation of a nuclear facility, where the offender intentionally causes, or where he knows that the act is likely to cause, death or serious injury to any person or substantial damage to property by exposure to radiation or release of radioactive substances, unless the act is undertaken in conformity with national law of the State Party in whose territory the nuclear facility is situated;

(f) an act constituting a demand for nuclear material by threat or use of force or by any other form of intimidation;

(g) a threat;

(i) to use nuclear material to cause death or serious injury to any person or substantial property damage or to commit the offence described in sub-paragraph (e), or

(ii) to commit an offence described in sub-paragraphs (b) and (e) in order to compel a natural or legal person, international organization or State to do or to refrain from doing any act;

(h) an attempt to commit any offence described in sub-paragraphs (a) to (e);

(i) an act which constitutes participation in any offence described in sub-paragraphs (a) to (h);

(j) an act of any person who organizes or directs others to commit an offence as set forth in sub-paragraphs (a) to (h).

(k) an act which contributes to the commission of any offence described in sub-paragraphs (a) to (h) of this article by a group of persons acting with a common purpose. Such act shall be intentional and shall either:

(i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in sub-paragraphs (a) to (g), or

(ii) be made in the knowledge of the intention of the group to commit an offence as set forth in sub-paragraphs (a) to (g);

shall be made a punishable offence by each State Party under its national law.

Annex 2

International Convention for the Suppression of Terrorist Bombings Article 2

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and inten-tionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

2. Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of the present article.

3. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2 of the present article;

or

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2 of the present article;

or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 of the present article by a group of persons acting with a common purpose; such contribution shall be

group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

Annex 3

International Convention for the Suppression of the Financing of Terrorism Article 2

1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

(a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or

(b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.

2. (a) On depositing its instrument of ratification, acceptance, approval or accession, a State Party which is not a party to a treaty listed in the annex may declare that, in the application of this

Convention to the State Party, the treaty shall be deemed not to be included in the annex referred to in paragraph 1, subparagraph (a).

The declaration shall cease to have effect as soon as the treaty enters into force for the State Party, which shall notify the depositary of this fact;

(b) When a State Party ceases to be a party to a treaty listed in the annex, it may make a declaration as provided for in this article, with respect to that treaty.

3. For an act to constitute an offence set forth in paragraph 1, it shall not be necessary that the funds were actually used to carry out an offence referred to in paragraph 1, subparagraph (a) or (b).

4. Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of this article.

5. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 4 of this article;

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 4 of this article;

(c) Contributes to the commission of one or more offences as set forth in paragraph 1 or 4 of this article by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in paragraph 1 of this article; or

(ii) Be made in the knowledge of the intention of the group to commit an offence as set forth in paragraph 1 of this article.

Annex 4

International Convention for the Suppression of Acts of Nuclear Terrorism Article 2

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and inten-tionally:

(a) Possesses radioactive material or makes or possesses a device:

(i) With the intent to cause death or serious bodily injury; or

(ii) With the intent to cause substantial damage to property or to the environment;

(b) Uses in any way radioactive material or a device, or uses or damages a nuclear facility in a manner which releases or risks the release of radioactive material:

(i) With the intent to cause death or serious bodily injury; or

(ii) With the intent to cause substantial damage to property or to the environment; or

(iii) With the intent to compel a natural or legal person, an international organization or a State to do or refrain from doing an act

2. Any person also commits an offence if that person:

(a) Threatens, under circumstances which indicate the credibility of the threat, to commit an offence as set forth in paragraph 1 (b) of the present article; or

(b) Demands unlawfully and intentionally radioactive material, a device or a nuclear facility by threat, under circumstances which indicate the credibility of the threat, or by use of force.

3. Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of the present article.

4. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1, 2 or 3 of the present article; or (b) Organizes or directs others to commit an offence as set forth in paragraph 1,2 or 3 of the present article;

or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1, 2 or 3 of the present article by a group of persons acting with a common purpose; such contribution shall

the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.